It’s time to look again at the European courts in Luxembourg. I shall start with the particular, two recent and interesting cases affecting lawyers, and move to the general, the courts’ record in relation to efficiency and the appointment of judges.
The Italian Bar, the Consiglio Nazionale Forense (CNF), announced last month that it has submitted a reference for a preliminary ruling to the Court of Justice arising out of forum shopping for lawyers’ titles. I believe that there are in fact two cases - C-58/13 and C-59/13 - although no documentation has yet been published. The background is that young Italian law graduates have been shopping in Spain for their professional qualification.
Although Spain has now introduced a bar exam, partly to avoid just this kind of activity, there are still a number of young Italian citizens who have found it easier to go to Spain, study the requisite number of subjects there, become Spanish lawyers without a bar exam, and then go back to Italy and demand that the bar admit them as Spanish lawyers. After that, they will be able to do anything that an Italian lawyer can do. (This is not the first Court of Justice case about forum shopping in Spain, either.)
The CNF asks the court whether there is an obligation for local bars to enrol as established lawyers those Italian citizens (with an Italian law degree) who go to Spain to obtain their professional title, or if there might be a ground for refusal where there are objective circumstances to believe that such practice constitutes an abuse of law, citing Article 4 of the Treaty of the European Union.
The second case has just been decided: Ordem dos Técnicos Oficiais de Contas (OTOC) against the Portuguese Competition Authority (Case C-1/12). It concerns Portuguese chartered accountants, who are required by law to undergo compulsory continuing education, part of which is provided by their professional body (OTOC), and part of which is open to be provided either by OTOC or by accredited providers. The decision to accept or reject the registration of training bodies and the decision to approve or reject training sessions proposed by those other bodies are taken by OTOC following payment of a fee.
The court held, among other things, that ‘a regulation adopted by a professional association putting into place a system of compulsory training for chartered accountants in order to guarantee the quality of their services constitutes a restriction on competition which is prohibited by EU law to the extent to which – this being a matter for the national court to ascertain – it eliminates competition within a substantial portion of the relevant market, to the benefit of that professional association, and in so far as it imposes, on the remaining portion of that market, discriminatory conditions to the detriment of competitors of the association’. Yet get the picture: if you are the accrediting body and also participating in the market, you cannot load the market in your favour.
The European courts have just published their annual statistics. The good news is that the duration of proceedings before the Court of Justice and the General Court continues to decrease significantly. In 2012, the Court of Justice completed 595 cases and had 632 new cases brought before it. The number of new cases remains very high and is the second highest annual number of new cases in the court’s history. The General Court completed 688 cases in 2012. In addition, the duration of proceedings decreased appreciably, with an average duration of 24.8 months, that is to say, 1.9 months shorter than in 2011.
But still there are challenges. For instance, there will be a high number of General Court judges’ terms of office coming to an end this year: an expiry of 13 mandates (out of a possible 27) on 30 September 2013, with four other judges being recent appointments. Apparently, some member states will not reappoint existing judges with good reputations. A high turnover of judges in the General Court tends to lead to a significant reduction in the number of cases determined. Therefore, the 2012 statistics just outlined might show movement in the opposite direction in the coming years. The question is: should not a sitting judge of proven competence and willing to continue in office have his or her mandate renewed, regardless of, say, a change in the domestic political situation?
The court tends to be the overlooked institution in the battles that play out over the other giants of the EU framework. It is the duty of lawyers to keep its outcomes and efficiency in the spotlight.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs